Date: 20070529
Docket: IMM-3928-06
Citation: 2007 FC 563
Ottawa, Ontario, May 29,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
VASANTHAN
KRISHNAPILLAI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Vasanthan Krishnapillai from a
decision of the Refugee Protection Division of the Immigration and Refugee
Board dated May 30, 2006. In that decision, Mr. Krishnapillai’s claim to
protection was denied.
Background
[2]
Mr.
Krishnapillai is a Tamil from the Jaffna area of Sri Lanka. He came to
Canada in 2004 with a circuitous routing through Singapore, Italy and
the Dominican
Republic.
His claim to Refugee Protection was premised upon a history of harassment by
the Liberation Tigers of Tamil Eelam (LTTE) and abuse at the hands of the Sri
Lankan authorities. His primary complaints of persecution concerned two
incidents of detention and physical abuse meted out to him by the Sri Lankan army
in late 2003 and early 2004. He described those events in his Personal
Information Form (PIF) as follows:
In September, 2003 I was arrested at the
Manipay army checkpoint. I was accused of being a Tiger supporter,
interrogated and beaten by the soldiers. I was detained for approximately one
month. I was released through the intervention of the gramaseveka (village
headman) and the International Red Cross.
In January, 2004 there was another round-up
conducted by the army in our area. I was picked up along with some other Tamil
young men and taken to the Ilavalai camp. There I was beaten by the soldiers
and scarred to my left shoulder by a soldier who cut me with a knife. I was
also injured when another soldier struck the butt of his gun on my right leg.
[3]
Mr.
Krishnapillai’s PIF described a worsening security situation in Sri Lanka and a
perception that the LTTE would initiate a new recruitment drive for members.
He also asserted that his father and brother had been detained as Tamil
suspects by the Sri Lankan army in March 2003 and, as of his departure to Canada in August
2004, they had yet to be released.
[4]
It
was on the strength of the above history that Mr. Krishnapillai sought refugee protection.
The Board Decision
[5]
The
Board rejected Mr. Krishnapillai’s testimony and described him as “devoid of
credibility”. That negative determination was based upon numerous
inconsistencies and omissions in the evidence he offered, including the
following:
a.
serious
contradictions between the PIF narrative and his testimony as to where and when
he was harassed by the LTTE;
b.
a
similar contradiction as to the dates when he was attending school in Sri Lanka;
c.
a
contradiction between his testimony that he had not suffered any problems with
the Sri Lankan army before 2003 and his PIF which described regular
mistreatment at army checkpoints involving verbal abuse, detentions for several
hours (sometimes under the hot sun) and thefts;
d.
a
contradiction between his Port Of Entry (POE) interview where he referred to
being arrested with his father and brother in March 2003 and his testimony to
the Board that he had not been arrested at that time;
e.
the
failure to mention in his PIF that he had been tortured with cigarette burns;
f.
a
contradiction between his PIF and his testimony about whether his father and
brother had been released from custody before he left Sri Lanka for Canada;
g.
significant
contradictions with respect to the details of his travel arrangements to come
to Canada along with
the absence of verifying travel documentation;
h.
a
failure to provide available corrobating documentation from the Red Cross about
his arrests.
[6]
When
Mr. Krishnapillai was confronted with the above evidentiary problems, he
offered a number of explanations including illness, a failure to understand the
questions posed, confusion, interpretation errors and a refusal by the
Immigration Officer during his POE interview to allow him to provide “all the
details”. The Board rejected all of his explanations and found that he had not
been subjected to harassment by the LTTE and that he had never been arrested by
Sri Lankan authorities. Having rejected Mr. Krishnapillai’s story of
persecution, the Board found it unnecessary to analyze his alleged fear of
return to Sri
Lanka
based on the general conditions described in the documentary evidence.
Issues
[7]
a. What
is the standard of review for the issues raised on behalf of Mr. Krishnapillai?
b.
Did
the Board err in its credibility assessment?
c.
Did
the Board err by failing to consider Mr. Krishnapillai’s claim in light of his
status as a Tamil male ostensibly from northern Sri Lanka?
Analysis
[8]
Counsel
for Mr. Krishnapillai challenged two aspects of the Board’s decision. She
argued that the Board’s credibility findings were flawed because, in a number
of respects, the Board failed to account for his “reasonable” explanations for
the identified testimonial inconsistencies and omissions. Secondly, she
contended that, even if Mr. Krishnapillai’s credibility had been undermined,
the Board had an obligation to consider whether he faced a generalized risk of
harm by virtue of his status as a young Tamil male.
[9]
The
Board’s credibility findings are entitled to the most deferential standard of
review, that being patent unreasonableness. A patently unreasonable decision
is one which leaves no real possibility of doubting that the decision is
defective or is so flawed that no amount of curial deference can justify
letting it stand: see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R.
247, 2003 SCC 20.
[10]
The
second issue raised by Mr. Krishnapillai is one of mixed fact and law. The
question is whether and on what evidence the Board may be required to conduct a
separate section 97 analysis under the Immigration Refugee and Protection
Act (IRPA), S.C. 2001, c.27, notwithstanding its rejection of a claimant’s
credibility. On this issue, it is unnecessary to conduct a pragmatic and
functional analysis because I can identify no error in the Board’s decision.
[11]
The
Board’s credibility findings were all well supported by the evidence before
it. Mr. Krishnapillai was a very poor witness with respect to virtually
every aspect of his claim history. His testimony was full of contradictions
and his resulting explanations were, on their face, mostly unconvincing. Even
in those few instances where an explanation might have been accepted as
plausible, it was open to the Board to find otherwise – particularly given the
cumulative weight of his excuses. Here I accept Mr. Anderson’s argument that
the mere existence of a reasonable explanation for an evidentiary inconsistency
does not make the Board’s contrary finding patently unreasonable. The same is
true for the interpretation or weighing of evidence by the Board. The fact
that another inference was open to be drawn on the evidence does not mean that
the Board’s evidentiary assessment was flawed.
[12]
The
Board’s assessment of Mr. Krishnapillai’s credibility was not only reasonable in
this case, it was essentially inevitable.
[13]
With
respect to the second issue raised on behalf of Mr. Krishnapillai, I accept
that there are situations where the Board’s adverse credibility conclusions do
not negate its obligation to consider other material corroborating evidence: see
Seevaratnam v. Canada (Minister of Citizenship and Immigration) (1999),
167 F.T.R. 130, [1999] F.C.J. No. 694 at para. 11; Voytik v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 50, 2004 FC 66 at para.
20. That is not, however, the situation here. The only arguable evidence of
that type in this record is a letter (apparently written by an acquaintance)
who had “learnt” that Mr. Krishnapillai was “under the trail of the Security
Forces as well as under the anti LTTE Groups”. Nothing in the letter indicates
where the information came from and it contains no corroboration for the
specific incidents of persecution alleged by Mr. Krishnapillai. Given the
content of this letter, it was not an error for the Board to ignore it in the
decision.
[14]
I
also do not agree that there is an absolute obligation for the Board to consider
the generalized risk situation where it has categorically rejected a claimant’s
evidence of personal risk. If a claimant’s own experiences over several years
of domicile did not give rise to any form of persecution, it is difficult to
see how a personal risk could otherwise be reasonably manifest absent some
change in the general risk situation in the area. On this point, I would adopt
the views expressed by Justice Paul Rouleau in Ahmad v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. 995, 2004 FC 808 at para.
22 where he stated:
Thus the assessment of the applicant’s
fear must be made in concreto, and not from an abstract and general
perspective. The fact that the documentary evidence illustrates unequivocally
the systematic and generalized violation of human rights in Pakistan is simply not sufficient to
establish the specific and individualized fear of persecution of the applicant
in particular. Absent the least proof that might link the general documentary
evidence to the applicant’s specific circumstances, I conclude that the Board
did not err in the way it analyzed the applicant’s claim under section 97.
[15]
Even
if I am wrong on this point, I do not think that the outcome would have been
any different had the Board gone on to analyze the general country condition
evidence concerning the situation of Tamils in Sri Lanka. The
evidence tendered on that issue was not of sufficient import that any different
outcome could have been expected once Mr. Krishnapillai’s story of persecution
collapsed: see Bouaouni v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 1540, 2003 FC 1211 at para.
42.
[16]
In
the result, this application for judicial review is dismissed. Neither party
proposed a certified question and no issue of general importance arises on this
record.
JUDGMENT
THIS COURT ADJUDGES that this
application for judicial review is dismissed.
"R.
L. Barnes"
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